UC Berkeley Web Feature

One Nation Under God:
Is the Pledge of Allegiance constitutional?

By Jesse H. Choper | 24 March 2004

Jesse
H. Choper is the Earl Warren Professor of Public Law
at UC Berkeley's Boalt Hall School of Law. Before joining
Boalt's faculty in 1965, he clerked
for Chief Justice Earl Warren of the U.S. Supreme Court, then taught at the
Wharton School of the University of Pennsylvania and at
the University of Minnesota Law School. A widely recognized constitutional
law scholar. Choper served as dean
of Boalt
Hall from 1982 to 1992.

The following essay by Choper was first published in the Fall/Winter 2003-04
issue of Boalt
Hall's Transcript magazine.

In 1942 Congress officially recognized the Pledge of Allegiance, which was
first published in 1892 in association with the national public school celebration
of Columbus Day. In June 2002, the U.S. Court of Appeals for the 9th Circuit,
by a 2-to-1 vote in Newdow v. United States Congress, invalidated a northeastern
California school district's policy of having a teacher-led recitation of the Pledge of Allegiance. The court held the Pledge, which includes the words "under God" added by a 1954 congressional statute, violated the Establishment Clause of the First Amendment, which provides that "Congress
shall make no law respecting an establishment of religion."

This ruling, a victory for an elementary school child's atheist father, who had brought the case, became the subject of enormous public controversy. President George W. Bush said that the court's decision was "ridiculous." Senate Majority Leader Thomas A. Daschle described it as just nuts." House Majority Whip Tom DeLay called it "sad" and "absurd." Senator Robert Byrd labeled the judges "stupid." The Senate unanimously approved a resolution in support of the Pledge. Members of the House of Representatives gathered on the front steps of the Capitol recite the Pledge en masse. After the 9th Circuit rejected a petition to review the decision en
banc the following February, the panel stood by its holding but issued a revised opinion.

Over the years, the U.S. Supreme Court has used several "tests" to assess government action under the Establishment Clause. In its original June 2002 opinion, the 9th Circuit found the Pledge invalid under the two major guides-the purpose and effect test articulated in Lemon v. Kurtzman (1971) and the "endorsement" test advocated by Justice Sandra Day O'Connor. In its revised opinion, the panel decided the case under a variant of Lemon, focusing on the coercive effects of a religious practice in a public school setting. In my view, the 9th Circuit reached a perfectly plausible, indeed persuasive, result under all three approaches.

Although the Lemon test has been roundly criticized, it has been dominant for three decades. Simply stated, under Lemon, government conduct violates the Establishment Clause if its purpose or its effect is to advance religion. In Newdow, the 9th Circuit found that the Pledge failed both parts of this rule.

As for purpose, the government conceded what the 1954 act's legislative history makes plain: Congress added the words "under God," at the height of the Cold War and McCarthyism, to reaffirm the core difference between American society and "atheistic communism." As President Eisenhower explained during the act's signing ceremony, daily recitation of the Pledge was intended to proclaim "the dedication of our Nation and our people to the Almighty."

The government nevertheless argued in Newdow that the Pledge as a whole had a secular purpose because it was primarily a patriotic observance, not a religious one. The 9th Circuit's rejection of this argument is strongly supported by the Supreme Court's reasoning in Wallace v. Jaffree (1985). Wallace involved an Alabama statute that originally mandated a daily minute of silence in schools for "meditation." The Alabama legislature then amended the law to read, for "meditation or voluntary prayer." The Supreme Court found that the amended statute violated the Establishment Clause, emphasizing that the legislature's sole motive in changing the statute was to add a reference to prayer. Similarly the 9th Circuit stressed that, although the Pledge was not unconstitutional across the board, inclusion of the words "under God" had been added to advance religion and thus made it unconstitutional.

The second part of the Lemon test, whether the effect of government action is advance religion, has been given especially sensitive treatment in the public school context. In a number of cases, the Supreme Court has recognized that schoolchildren are especially impressionable and subject to the "coercive" effect of peer group pressures to conform, and that this influence is strongest in matters of social convention. As Justice Felix Frankfurter once observed, in public schools the "law of imitation operates, and nonconformity is not an outstanding characteristic of children."

It has been clear since West Virginia State Board of Education v. Barnette (1943) that no child may be compelled to recite the Pledge because, the Supreme Court reasoned, that would require affirmation of belief, in violation of the First Amendment freedom of speech. However, even when the recitation is voluntary, students may not feel at liberty to make a genuine choice. When teachers lead the Pledge and the vast majority of students participate, most youngsters find it easier to go along than to remain silent or leave the room. Following the attacks of September 11, students may feel a special reluctance to shun this quintessential patriotic exercise, even if its words conflict with their religious precepts.

The Supreme Court has recently recognized this dynamic in Lee v. Weisman 1992), striking down a middle school's decision to include an invocation and a benediction by a member of the clergy at its graduation. The Court found that students were, in effect, required either to participate in the ceremony, at least by standing silently, or to register an overt protest by leaving, and that these were unacceptable options.

The 9th Circuit rested its amended judgment in Newdow on this approach, noting that the Pledge is a normative exercise setting forth ideals American society holds for the nation. Schoolchildren generally look to teachers and classmates for guidance about such cultural values. The recitation of the Pledge may, therefore, cause students to believe that, in order to comply with school norms, they should hold certain religious beliefs.

In its more recent decisions, the Supreme Court has relied on another approach, the endorsement test championed by Justice O'Connor. While this standard has not fully supplanted Lemon, it appears to have the support of five of the present justices, probably made clearest in Capitol Square Review and Advisory Board v. Pinette (1995). Under this test, courts must consider whether a reasonable observer would perceive the challenged government action as an endorsement of religion, sending a message to nonadherents that they are outsiders rather than full members of the political community.

As the 9th Circuit recognized, there is a strong argument that the Pledge violates the Establishment Clause under the endorsement test as well as Lemon. This is true, not in spite of, but rather because of, the Pledge's primarily patriotic intent. As an affirmation of citizenship, the Pledge defines membership in the political community. As amended in 1954, the Pledge refers to a particular belief, monotheism, that many people-not only atheists, but members of religions such as Buddhism-do not share. This official reference to a single God may well strike nonbelievers as an act of exclusion.

The ample grounding in Supreme Court precedent for its result has not spared Newdow a tumultuous reception. After the uproar over the initial June decision, the 9th Circuit considered a petition to review the case en
banc. Had a majority of the 24 active judges granted the petition, 11 judges chosen at random would have heard the case.

It was difficult to predict at the time whether the 9th Circuit would grant en banc review. Some of the judges may have welcomed the chance to reconsider this controversial ruling, holding an act of Congress unconstitutional by a 2-to-1 vote. Other judges may have disfavored en
banc review, not only because it would be burdensome and time-consuming, but also because of the strong likelihood that Newdow would end up in the Supreme Court. The ultimate vote was close, the court denying the petition for en
banc review, but nine of the judges felt the need to announce their dissent.

Newdow's future may be easier to forecast. Both the Supreme Court's past dicta and the views of its current members strongly suggest that they will grant review (most likely in October) and-unless they rule that the father-plaintiff has no standing in light of the child's mother's disagreement with his lawsuit-ultimately reverse the 9th Circuit. There are two possible routes the Court might take without seriously disturbing its general approach to the Establishment Clause. Both were put forth by justices much more inclined to find a high wall of separation between church and state than the current Court has been.

The first suggestion comes from a footnote in Justice Hugo L. Black's near unanimous opinion for the Court in Engel v. Vitale (1962), which invalidated teacher-led prayer in public schools. Justice Black distinguished practices such as prayer and Bible reading, which were "unquestioned religious exercises," from "patriotic occasions" that "contain references to the Deity." While not specifically mentioning the Pledge, this reasoning could readily be extended to apply to it.

Justice William J. Brennan Jr. employed more explicit rationale for upholding the Pledge in Lynch v. Donnelly (1984) in his dissent from the Court's holding that a city could include a nativity scene in its annual Christmas display. Justice Brennan's opinion, written for the Court's four most separationist justices (only one of whom- Justice John P. Stevens-remains), distinguished public display of a crèche from use of "In God We Trust" as our national motto and "under God" in the Pledge of Allegiance. These phrases, Justice Brennan argued, have lost religious significance through "rote repetition." Rather than being religious acts, he characterized them as "a form of ceremonial deism," which might be viewed as part of what some national observers have labeled our "civil religion."

The core notion, expressed by both Justices Black and Brennan, is that the phrase "under God" in the Pledge is not sufficiently serious or significant to rise to the level of a constitutional violation. Under one or another version of this idea, I greatly doubt that Newdow will survive Supreme Court review.

Still, I think that the 9th Circuit's result is the correct one, although I believe that the Court's Establishment Clause tests are flawed. Instead, I favor an interpretation that I first proposed 40 years ago. Under this approach, government action violates the Establishment Clause when its purpose is to aid religion and its effect meaningfully endangers religious liberty. The key differences in my test from the Lemon test are that purpose and effect must both be present, and the effect must be a meaningful one.

Because my suggested standard is fairly rigorous, it would not invalidate all passing references to religion in public life. Nevertheless, it would be satisfied here. In adding "under God" to the Pledge of Allegiance, Congress was unquestionably motivated by a religious purpose. To dismiss the phrase as trivial or ceremonial overlooks the special compulsive influences that exist in the context of public schools, which tend to induce schoolchildren to recite the Pledge, thus meaningfully endangering their religious liberty.

Special thanks to Katherine Florey '04 for her assistance in preparing
this essay.